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Rights of Way

Diversions

Due to the high number of diversion applications currently being processed Hampshire County Council will be operating a waiting list for new applications.

It should be noted that, whilst the Council has a power to process diversions, this is not a statutory duty and as such only limited resources can be allocated to it.

In order to ensure that the best use is made of public resources each application will be scored according to the amount of public benefit the proposal offers and an application will be progressed according to the level at which it has scored.

The guidance notes that follow give an idea of the kind of criteria the Council will be considering in assessing applications to help you formulate a strong proposal with the best chance of success; applications that do not satisfy this guidance will not be accepted. All applications that are progressed must meet the required legal tests in order to be confirmed.

The County Council may authorise the diversion of footpaths and bridleways if it is in the interests of the owner or occupier of the land, or in the interests of the public. The diverted route should be no less convenient to use than the existing route and should not adversely affect the public's enjoyment of the path as a whole.

Distance, views, gradient and accessibility are relevant in deciding whether a diversion should be made.

District Councils also have the power to make diversion orders.

Part I: The Process for the Diversion of a Public Right of Way

The route of a public right of way should not be moved unless the change has first been authorised by a legal order, known as a diversion order. Diversion orders can be made by the County Council or by District Councils. This guidance explains how to apply to Hampshire County Council for permission to move a footpath, bridleway or restricted byway. Different rules apply to the diversion of a byway open to all traffic.

When can a path be diverted?

A diversion will only be granted if the proposal meets certain requirements, which are set out in the Highways Act 1980. The proposed diversion must be in the interests of the owner, occupier, or lessee of the land crossed by the right of way, or in the interests of the public and the new route must not be substantially less convenient to the public. Each application will be prioritised according to the amount of public benefit offered in order to ensure that best use of limited public resources, but above all it must be expedient to have the diversion. In deciding whether it is expedient, we will take into account the public’s enjoyment of the whole path and the effect of the diversion on other land. The same rules apply to some diversions made by the District Councils, but District Councils also have power to divert paths to enable development to take place.

We can also make diversion orders to improve school security and to reduce crime, but we would like these to be discussed with us before an application is made, as different considerations apply.

Who can apply?

Anyone can apply for a diversion, but we would be most unlikely to agree to a diversion without the consent of the owners and occupiers of the land crossed by the old and new routes.

How long does it take?

When we receive an application for a diversion, we make an initial site visit to advise, and help us to assess whether the proposed diversion would meet the necessary criteria set out in our guidance. Following the site visit, an application may be submitted. Because only limited resources can be given to diversions, there is currently a waiting list for processing applications. It is not possible to state exactly how long the interval will be between receiving the application and the actual start of the decision-making process. The waiting time is affected by many variables, including the priority assigned to your individual application, the priority of those currently being processed and the number of applications that we have at any one time. We hope to make our decision on an application within nine months of taking it up from the waiting list (it takes this long because we need time to consult others about the proposal and fit the application into the decision-making cycle of the Regulatory Committee). Even where we agree to make the order, it will take at least a further six months before the legal processes are complete. If the order is contested, it can take considerably longer.

What does it cost?

The diversion cannot be completed until the new path is put into good condition and formally accepted by the Council. We will specify any work that needs to be done before we make a diversion order but, if the diversion proceeds, the applicant must carry out the work, to our satisfaction, at his own expense. We have the power to do the necessary work and recover the cost from the applicant if he fails to do so.

We charge the applicant for the time we spend processing an application (in the region of £2,400 (no VAT)) and for the actual cost of advertising the diversion in the local press (approximately £1,500, depending on the length of the advertisement and the newspaper concerned). These charges are correct for the 2014/15 financial year and may be reviewed annually.

If an order is opposed we may decide to refer it to the Secretary of State for determination but do not have to do so. In this case we bear the ongoing costs of pursuing it from there.

An applicant may be required to pay compensation to anyone whose land is devalued as a result of the diversion.

We can require an applicant to enter into an agreement with us to pay these costs and expenses.

Who decides whether a path should be diverted?

Initially, we do. The case officer will make a recommendation to our Regulatory Committee, which will decide whether or not a diversion order should be made. However, the making of an order is a public process, and if we receive objections to the order we may decline to take the matter further, or we may refer it to the Secretary of State for a decision. This may result in a public inquiry, or hearing, or be dealt with by way of written representations.

Please note that we do not have to make a diversion order, even if it complies with the requirements of the legislation. We hope that, by providing advice in Part II of this guidance, applicants will be encouraged to propose diversions which improve the network, or offer the public better access opportunities. We reserve the right not to agree to diversions that do not do so. We will, however, consider all applications and give reasons for our decision.

First steps

We recommend that anyone thinking of moving a public right of way first finds out the correct, legal line of the path (this may not be exactly how the path is used in practice). The most up to date information about the rights of way network is available at our offices in Castle Avenue, Winchester, SO23 8UL, or online. Each public right of way is uniquely referenced by the name of the parish in which it is located, and a number. We will need this information to process an application.

The proposed new line of the path should be planned using the Part II guidance. We can provide informal advice at this stage in order that an application has the best possible chance of success. We can also advise at an early stage if the proposal is unlikely to succeed. The initial contact is our Countryside Access Development Officer (01962 847354).

It makes sense to consult with local residents and users of the route before submitting a formal proposal to the County Council, so that their views can be canvassed at an early stage, thereby reducing the chances of objections after costs have been incurred. We suggest:

erecting a notice beside the section to be diverted, explaining the proposed diversion and seeking comments and suggestions from those who use the route. Include a large scale plan showing the current rights of way network in the area (we may be able to assist in this respect).

contacting local representatives of interested user groups and asking for their input. We will be able to supply contact details for representatives of the Ramblers’ Association, the Open Spaces Society and the Parish Council, and also the British Horse Society and Cyclists Touring Club (in the case of bridleways) and the British Driving Society (in the case of restricted byways).

The application

We will provide copies of the application form, which should be sent to us once the proposal has been finalised, together with a map showing the proposed diversion.

The process

Part II: Choosing a new route

This part of the guidance is intended to help applicants promote a diversion which provides the best possible alternative route and an application which is, therefore, more likely to be approved. It is also intended to discourage the making of applications that provide little benefit to the rights of way network or stand little or no prospect of success.

We recognise that the needs and aspirations of the users of a path need to be taken into account when a path is diverted as well as those of the land owner and/or manager. We will consider both and we will also have regard to our Countryside Access Plans, which drive and inform the way in which we manage the network of public rights of way. These are the result of research and consultation with local residents, access user groups, land owners, farmers and land managers. For further information on the plans click here.

We recognise that different users have different needs and not everyone using the rights of way network will agree on the qualities which make it special. We have consulted a number of people and organisations with different interests and have sought to draw out the most obvious issues of concern. The guidance is not intended to be prescriptive, because the overall quality of an application will be a combination of many different factors. These might include:

the quality of the existing route and the proposed new route, in terms of surface, gradient, views and quality of the user’s experience

the importance of the path in the network,

the nature of the terrain,

local needs and opportunities

level and ease of future maintenance

Our recommendations on widths, for example, are for guidance only, because the provision of a path at our suggested width does not guarantee that the application will be looked on favorably, any more than non-compliance means that application will necessarily be unsuccessful. We are suggesting that new footpaths should be at least 2 metres wide, because this width provides for ease of use and makes the path more accessible for machinery used for cutting. However, if there are good practical, or land management, reasons why the width should be less the diversion may nonetheless be acceptable. We want to encourage easier access to the countryside for all, so we will look more favorably on a new route that has no gates or stiles than on one which affords less accessibility. However, we also recognise that there are reasons why structures may be necessary to manage land properly, so a new path which includes such gates or structures may still be approved. Our guidance should be read in this spirit.

1. Accessibility to users and for maintenance purposes

Structures

We like routes without gates, stiles, or other structures

We don’t like routes with structures unless these are necessary to prohibit unauthorised use or to control livestock. If a structure is needed to prevent unauthorised use, where possible a gap should be left at the side for pedestrian (and, where possible, equestrian) access. Structures needed for the control of livestock may be authorised under s.147 Highways Act 1980.

We don’t like stiles.

We would like you to discuss with us the specification of any structures before submitting your application. Bridleway gates need to be a minimum 5 ft wide and have a longtail latch. We would like to see Radar gates and medium mobility gates where improvements to accessibility are needed or desirable.

We like structures on bridleways at junctions with roads to be sited sufficiently far back from the road junction to provide an area for riders to wait safely before crossing

Width

We don’t like new paths to be narrower than the paths they replace

We like paths to be wide enough for people to use easily and for machine access should surface cutting be necessary, ideally a minimum of 2 metres for a footpath and 3 metres for a bridleway but, generally, the wider the path the better

We don’t like to find that diverted paths are subsequently narrowed by fencing or hedges, so if a path is to be enclosed at least an additional 0.5 metres of width should be offered.

2. Quality of surface

We don’t like new paths to have a surface which is less durable than the old, or which costs more to maintain. Drainage of the new path is an important matter to consider, as is the ability of the path to dry out after wet weather. The surface of a brand new path across open land may not be as durable as the surface of a path that has been compacted as a result of having been trodden for centuries, so the new path may need to be drained or engineered before it is of a similar standard.

We like new paths with improved durability, consistent with their character and situation. We will advise on the required standard of construction of a new path. This will vary according to its location and future use. For example, if the diversion means that the path is likely to be used more after the diversion than before, we may require the new path to be constructed to a higher standard than the old.

We don’t like new paths to use private access points where livestock congregate or where surface damage can be caused by farm machinery

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3. Quality of experience

We like paths which offer the user a similar, or enhanced, experience to the path being diverted, in terms of character, views, gradient and convenience of use

We don’t like a significant increase in length, unless this is justified where it offers an improved experience or a link to a network not as conveniently accessible on the existing network

We don’t like paths which take the user away from points of interest, such as views, historic features, or water unless an equivalent feature is available on the new route

We like diversions which reduce potential hazards for the user, such as taking users off a busy road, or away from land used by plant and machinery

We like paths which are safer for users, such those with improved sight lines at road crossings

We like paths which take a route that is easy for the users to follow without excessive signing and waymarking

4. Strategic value

We like diversion proposals which provide improvements in connectivity to other parts of the rights of way network or to areas of public access

We don’t like diversions that do the opposite

We like diversions which offer network improvements identified by the relevant Countryside Access Plan better than those which do not. All diversion proposals should meet the standards recognised in such access plans as relevant to highways of that type.

We like diversions which offer additional rights for non-motorised users. If a new footpath is suitable and appropriate for use by horse riders and cyclists, we will welcome the dedication of additional rights for those users.

We reserve the right not to process an application for diversion if rights of way on land owned by the landowner are not fit for use as a result of any default on the part of the owner or occupier of the land.

We will not make or confirm an order if we do not consider it expedient to do so. In deciding whether or not it is expedient, we will take into account the cost of promoting an order once made, and the prospective benefit afforded to the public by the new route.

Part III: A landowner’s responsibility for the network

The County Council will become responsible for the maintenance of the surface of any public right of way that has been diverted, but landowners have certain responsibilities for public paths which cross their land. We think it worth reminding prospective applicants of these, so that future liabilities can be taken into account when a new route is proposed.

Vegetation

A landowner must ensure that vegetation from land on either side of a right of way does not overhang or encroach onto the public path. If a path is to be enclosed by hedges, or is to run next to a hedge or woodland, the regular cutting back of vegetation will be an ongoing responsibility on the part of the landowner or occupier of the land on which they are planted. Care should also be taken to ensure that there is adequate headroom for users of the path. In the case of a bridleway, clear headroom of at least 3 metres must be maintained. Any tree falling across a right of way should be cleared by the owner of the tree.

Ploughing and cropping

There is a right to plough across a footpath or bridleway if it runs across a field, provided that it is not reasonably convenient to avoid disturbing the surface of the path. A footpath should be reinstated within 14 days to a minimum width of 1 metre and a bridleway should be reinstated to a minimum width of 2 metres within 14 days of the first disturbance for sowing of a crop, and within 24 hours in any other case. The potential disturbance to users caused by the ploughing of a right of way is a factor that we will take into account before approving a diversion, but where it has been approved, landowners should be aware that the right to plough comes with the responsibility to reinstate. It is an offence to disturb the surface of headland paths.

Any path running through a field of crops must be kept clear by cutting or spraying to the same widths.

Structures

Landowners and occupiers are responsible for the maintenance of gates and other structures on rights of way unless they have been erected by us under our traffic management powers. They should be repaired or replaced when necessary so that they are safe and easy to use. We can provide advice and assistance when structures need to be replaced. No structures should be erected unless previously authorised by us.

Livestock

Livestock and the public do not always mix. All land managers are under a duty not to put at risk the health and safety of persons not in their employment. Specific rules relate to bulls: it is an offence to keep any bull in a field crossed by a right of way unless i) the animal is under 10 months old or ii) it is not of a recognised dairy breed and is at large with cows or heifers.

Obstructions

It goes without saying that rights of way should not be obstructed, even temporarily and that it is an offence to erect signs or act in a way intended to mislead or deter members of the public from using public rights of way.

We would remind landowners that the maintenance of free passage along public rights of way is a key farm activity that falls within the cross-compliance rules of the Single Payment. The County Council, as a relevant enforcement body, is encouraged to report GAEC breaches to the Rural Payments Agency (‘RPA’), particularly those which breach GAEC 8 – Public Rights of Way. The RPA will then consider a reduction in the SPS Payment.